Monday, February 25, 2013 1:34 pm

Maine man can whistle, but he must keep moving

The Associated Press

A man charged with disorderly conduct for his loud whistling in downtown Portland has reached a deal with the city - he can whistle, but he can't linger in one spot.

Robert Smith, of Westbrook, has been cited by police twice in the past year after businesses complained. He pleaded guilty last summer and reached a deal with the city in which he can keep whistling as long as he's moving.

Smith maintains that his whistling - audible a block away - is protected free speech and usually brings smiles.

"God is showing me what I'm doing is OK," he told The Portland Press Herald (http://bit.ly/15e6AEN). "He shows me every day with laughter."

But downtown businesses have complained about the 32-year-old Smith's never-ending noise-making.

Janis Beitzer, of the Portland Downtown District, understands why some business owners are upset.

"Just like if somebody plays an instrument in front of your business or has the radio on constantly, it's irritating," Beitzer said.

Smith said he works a construction job during the summer, but when he's not working he usually takes a bus into Portland and walks downtown streets from about 9 a.m. to 5 p.m., wearing a baseball cap, wrap-around sunglasses and a backpack while listening to classic rock and oldies through his headphones.

As he walks the streets, some people laugh and smile. But others scowl or roll their eyes in disgust, making rude comments after passing by.

In a plea agreement last summer, Smith pleaded guilty to disorderly conduct and agreed to no longer whistle while standing in one place. As long as he's walking while he whistles, authorities agreed not to bother him.

The prosecutor, Trish McAllister, disagreed that Smith's whistling is protected by the First Amendment. A Portland city ordinance says whistling, hooting and other unnecessary noises that "annoy, disturb or injure the health, peace or safety of others" are forms of disorderly conduct.

"The judge and I viewed this as a behavioral issue," she said. "(Smith) was aggressive. He would follow people who gave him a wrong look."